Excerpt: - .....magistrate, fatehabad on the basis of a complaint for an offence under section 417, indian penal code. the complainant, as partner of a firm o commission agents, filed the complaint on the following allegations. that the accused who. is a merchant and commission agent carrying on business at palghat in keral, placed an order with the complainant for purchase of 220 quintals of pea pulse, and for despatching the same to the accused at palghat. the complainant quoted the price and after its having been accepted by the accused, purchased the goods and despatched them through the railway. the hundis were sent through the state bank of india and the railway receipts were also sent with the same. they were to be delivered to the accused on payment of the price of the goods. the accused did.....

Judgment:ORDER

Hari Swarup, J.

1. This is an application under Section 561-A, Criminal Procedure Code, moved by the applicant for quashing the proceedings pending in the court of the Munsif Magistrate, Fatehabad on the basis of a complaint for an offence under Section 417, Indian Penal Code. The complainant, as partner of a firm o commission agents, filed the complaint on the following allegations. That the accused who. is a merchant and commission agent carrying on business at Palghat in Keral, placed an order with the complainant for purchase of 220 quintals of Pea pulse, and for despatching the same to the accused at Palghat. The complainant quoted the price and after its having been accepted by the accused, purchased the goods and despatched them through the railway. The Hundis were sent through the State Bank of India and the railway receipts were also sent with the same. They were to be delivered to the accused on payment of the price of the goods. The accused did not honour the Hundis and did not take delivery of the goods. The complainant made,every effort to make the accused pay the amount, but he did not do so, and as in-the mean time the market had gone down, the complainant suffered a loss to the extent of Rs. 1,500/-. On these allegations it was alleged that the accused had committed an offence under Section 417, Indian Penal Code.

2. The learned Counsel appearing for the accused applicant has urged that the complaint does not make out any offence against the applicant and, hence, the court of the Munsif Magistrate has no jurisdiction to continue with the case. The learned Counsel appearing for the complainant, on the other hand, has contended that the ingredients of Section 415 have been detailed in the complaint and they make out an offence under Section 417, Indian Penal Code. Section 415, Indian Penal Code reads as under:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat.

Explanation - A dishonest concealment of facts is a deception within the meaning of this section.

(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or-

(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(c) In cases covered by (ii)(b) the act or omission should be one which causes or is likely to cause damage . or harm to the person induced in body, mind, reputation or property.

3. The first element necessary for constituting an offence of cheating is a deception of the complainant by the accused. Unless there is deception the offence of cheating cannot be made out. After deception has been practised, the person deceived should get induced to do or omit to do something. In the present case, although it is alleged that the complainant had been induced to purchase tha goods and despatch them to the accused, no fact has been mentioned which might constitute deception.

4. Deception has in it the element of misleading, of making a person believe something which is not real. It implies causing of a person to believe as true something that .is false. According to the Webster's New International Dictionary the word 'deceive' indicates 'inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.' There is no allegation in the complaint that any such thing has happened. According to the complaint the accused is a regular merchant and businessman carrying on the business of commission agency. The order was placed in the normal course of business. Subse-; quently, the accused -refused to take delivery of the goods causing loss to the complainant. There is no allegation that the accused made the complainant believe something as real which, was not real.

5. Learned Counsel for the complainant contended that the accused had made the complainant believe he will pay for the goods although he did not intend it. The submission is that as the accused had ultimately refused to take delivery of the goods and honour the hundis. it must be inferred that from the very beginning he had the intention of not honouring the hundis and not taking the delivery of the goods. It may have been possible to draw such an inference from the conduct of the accused, if nothing had intervened. If the circumstances continue unaltered from the beginning till the end, i.e;, the status quo ante continues till _thevfinal act or omission by the accused, it may be possible to draw such an inference: but if the circumstances change and something intervenes in between the placing of the order and refusing to take the delivery of goods,' it will not be possible to draw any such inference. In the complaint it has been stated that in the mean time the market had gone down. If the accused had taken delivery of the goods at the rate contracted, the accused would have suffered a loss. It was this which could, and probably did, induce him to change his mind. As this is a new factor which came into existence after the placing of the order and before the tender of the goods, the inference sought to be drawn by the learned counsel cannot be drawn-

6. The complaint does not make out, that the action of the complainant in purchasing or despatching the goods was the result of any deceptive inducement. As no specific act of deception has been allefied in the complaint, and as it is not possible to infer from the circumstances alleged that any deception had been practiced, the complaint cannot be said to ' contain any information that the accused had committed aji offence punishable under Section 417 of the Indian Penal Code. The criminal court has accordingly no jurisdiction to proceed with the matter and try the accused on the basis of the complaint in question.

7. In the result, the petition is allowed and the proceedings pending in the court of the Munsif Magistrate, Fa-tehabad, Agra in Criminal Case No. 67 of 1970, Krishna Chandra Gupta v. p.m. Natarajan under Section 417, Indian Penal Code are quashed.